Spring 5-1-2020
Supervised Release Is Not Parole
Supervised Release Is Not Parole
Jacob SchumanFederal Community Defender Office for the Eastern District of Pennsylvania
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Recommended Citation Recommended Citation
Jacob Schuman, Supervised Release Is Not Parole , 53 Loy. L.A. L. Rev. 587 (2020).
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587
SUPERVISED RELEASE IS NOT PAROLE
Jacob Schuman*The United States has the largest prison population in the developed world. Yet outside prisons, there are almost twice as many people serving terms of criminal supervision in the community— probation, parole, and supervised release. At the federal level, this “mass supervision” of convicted offenders began with the Sentencing Reform Act of 1984, which abolished parole and created a harsher and more expansive system called supervised release. Last term in United States v. Haymond, the Supreme Court took a small step against mass supervision by striking down one provision of the supervised release statute as violating the right to a jury trial. But the Justices did not consider all the differences between parole and supervised release, which have far broader consequences for the constitutional law of community supervision.
The current consensus among the courts of appeals is that supervised release is “constitutionally indistinguishable” from parole and therefore governed by the same minimal standard of due process. Closer inspection, however, reveals three significant differences between parole and supervised release. First, parole was a relief from punishment, while supervised release is an additional penalty. Second, parole revocation was rehabilitative, while supervised release revocation is punitive. Finally, parole was run by an agency, while supervised release is controlled by courts. Because of these differences, revocation of supervised release should be governed by a higher standard of due process than revocation of parole. In particular, defendants on supervised release deserve more protection against delayed revocation hearings, which may deny them the opportunity to seek concurrent sentencing.
* Research and Writing Attorney, Appellate Unit, Federal Community Defender Office for the Eastern District of Pennsylvania; Harvard Law School, J.D.; Brown University, B.A. Thank you to Professors Douglas Berman, Daniel Hemel, and Carol Steiker for their helpful comments and support. Thanks as well to the editors of the Loyola of Los Angeles Law Review. All views and errors are my own.
TABLE OF CONTENTS
I. INTRODUCTION ... 589
II. THE HISTORY OF PAROLE AND SUPERVISED RELEASE ... 593
A. Origins of Early Release ... 594
B. Development of Parole ... 597
C. Turn Against Indeterminate Sentencing ... 599
D. End of Parole ... 601
E. Creation of Supervised Release ... 603
III. CASELAW ON PAROLE AND SUPERVISED RELEASE ... 607
A. Supreme Court’s Parole Decisions ... 607
B. Supreme Court’s Silence on Supervised Release ... 612
C. Circuit Courts’ Application of Parole Precedents to Supervised Release ... 615
D. Supreme Court Breaks Its Silence on Supervised Release ... 619
IV. SUPERVISED RELEASE IS NOT PAROLE ... 623
A. Relief Versus Penalty ... 623
B. Rehabilitation Versus Punishment ... 626
C. Agency Versus Courts ... 630
V. THE RIGHT TO A TIMELY REVOCATION HEARING ... 632
A. No Early Release Justifying Reduced Constitutional Protection ... 636
B. No Rehabilitative Reason for Delaying Hearing ... 637
C. No Administrative Flexibility to Impose Retroactively Concurrent Sentence ... 640
I. INTRODUCTION
The United States has the largest prison population in the developed world: 2.3 million people behind bars.1 Yet outside prison walls, there are almost twice as many people, 4.5 million, serving terms of criminal supervision in the community—probation, parole, and supervised release.2 This “mass supervision” of convicted defendants is, as the District Attorney of Philadelphia Larry Krasner recently said, “a major driver of mass incarceration.”3 Currently,
almost 300,000 people are incarcerated for violating conditions of their supervision—one third of all prisoners in thirteen states, and more than half of all prisoners in Arkansas, Idaho, Missouri, and Wisconsin.4 Proceedings to revoke community supervision are governed by only a minimum standard of due process, with no right to a jury and no right to proof beyond a reasonable doubt.5
Mass supervision at the federal level began with the Sentencing Reform Act of 1984, which abolished the old parole regime and created a harsher and more expansive system called “supervised release.” Today, over 100,000 people are serving terms of supervised release—five times more than were under parole—and over 10,000 people are in federal prison for violating the conditions of their release.6 Last term in United States v. Haymond,7 the Supreme Court took a small step against mass supervision by striking down one provision of the supervised release statute as violating the defendant’s
1. Wendy Sawyer & Peter Wagner, Mass Incarceration: The Whole Pie 2019, PRISON POL’Y
INITIATIVE (Mar. 19, 2019), https://www.prisonpolicy.org/reports/pie2019.html.
2. DANIELLE KAEBLE, U.S. DEP’T OF JUSTICE, BUREAU OF JUSTICE STATISTICS, NCJ251148,PROBATION AND PAROLE IN THE UNITED STATES,20161 (Apr. 2018),
https://www.bjs.gov/content/pub/pdf/ppus16.pdf.
3. Press Release, Phila. Dist. Attorney’s Office, New Philadelphia D.A.O. Policies Announced March 21, 2019 to End Mass Supervision (Mar. 21, 2019) https://medium.com/philadelphia-justice/philadelphia-daos-policies-to-end-mass-supervision-fd5988cfe1f1.
4. Alan Greenblatt, Probation and Parole Violations Are Filling up Prisons and Costing States Billions, GOVERNING (June 18, 2019, 6:11 PM), https://www.governing.com/topics/public-justice-safety/gov-parole-probation-report-criminal-justice.html.
5. PEWCHARITABLE TRS.,NUMBER OF OFFENDERS ON FEDERAL SUPERVISED RELEASE
HITS ALL-TIME HIGH (Jan. 2017), http://www.pewtrusts.org/~/media/assets/2017/01/number_of_ offenders_on_federal_supervised_release_hits_alltime_high.pdf.
6. Jacob Schuman, America’s Shadow Criminal Justice System, NEW REPUBLIC, (May 30, 2018), https://newrepublic.com/article/148592/americas-shadow-criminal-justice-system.
right to a jury trial.8 But the Justicesdid not consider all the differences
between parole and supervised release, which have far broader consequences for the constitutional law of community supervision.9
Until Haymond, supervised release had received scant attention from either scholars or courts.10 During the 1970s, the Supreme Court
issued three major decisions on the constitutional rights of parolees, holding that parole revocation was governed by a minimal standard of due process with no other protections under the Bill of Rights.11 Yet
after Congress created supervised release in 1984, the Court spent more than thirty years in silence as to how this new system fit into the nation’s constitutional framework. Meanwhile, a consensus arose among the courts of appeals that supervised release was simply a continuation of the old parole system and therefore governed by the old parole precedents. Declaring that parole and supervised release revocations were “constitutionally indistinguishable and . . . analyzed in the same manner,”12 the circuit courts held that defendants facing
revocation of supervised release were entitled to the same bare minimum standard of due process as parolees: a hearing before a judge (but not a jury), with a preponderance-of-the-evidence standard of proof (rather than proof beyond a reasonable doubt), no Fourth Amendment rights, no right against self-incrimination, no right to a
8. Id. at 2378–79. 9. Id. at 2380.
10. Fiona Doherty and Christine S. Scott-Hayward are the only legal scholars to have published extensive analyses of supervised release, and this Article is indebted to their work. See Fiona Doherty, Indeterminate Sentencing Returns: The Invention of Supervised Release, 88N.Y.U. L.REV.958,960 (2013); Christine S. Scott-Hayward, Shadow Sentencing: The Imposition of Federal Supervised Release, 18BERKELEY J.CRIM.L.180, 182–83 (2013). The Federal Sentencing Reporter also dedicated a helpful 1994 issue to the subject. See David N. Adair, Revocation of Supervised Release—A Judicial Function, 6 FED.SENT’G.REP.190 (1994); Paula Kei Biderman & Jon M. Sands, A Prescribed Failure: The Lost Potential of Supervised Release, 6FED.SENT’G REP. 204(1994);Sharon O. Henegan, Revocation of Probation and Supervised Release: A Commission Perspective,6FED.SENT’G REP. 199 (1994); Carlos Juenke, Using Internal Intermediate Sanctions to Avoid Revocation of Supervised Release for Cocaine Use, 6FED.SENT’G REP.210(1994); George P. Kazen, Mandatory Revocation for Drug Use: A Plea for Reconsideration, 6FED.SENT’G
REP. 202 (1994);Keith A. Koenning, Supervised Release Violators and the Comprehensive Sanctions Center in the Northern District of Ohio, 6FED.SENT’G REP.208(1994);Michael A. Stover, The Future of Supervised Release, 6FED.SENT’G REP.195(1994); Barbara M. Vincent, Supervised Release: Looking for a Place in a Determinate Sentencing System, 6FED.SENT’G REP. 187 (1994); Thomas N. Whiteside, The New Challenge of Supervised Release, 6FED.SENT’G REP. 211(1994).
11. See Moody v. Daggett, 429 U.S. 78 (1976); Gagnon v. Scarpelli, 411 U.S. 778 (1973); Morrissey v. Brewer, 408 U.S. 471 (1972).
speedy trial, no Confrontation Clause right, no right to effective assistance of counsel, and no rights under the Federal Rules of Evidence.13
Haymond is the Supreme Court’s first major decision on the constitutional law of supervised release. Spotlighting the important role of community supervision in the federal criminal justice system, the case also left the Court intractably divided. In a splintered 4–1–4 vote, five Justices agreed to strike down one provision of the supervised release statute that imposed a five-year mandatory minimum sentence on sex offenders who violated their release by committing another sex offense. But unable to settle on a majority opinion, the Justices split over how best to understand the relationship between parole and supervised release.
Justice Gorsuch wrote a plurality opinion, emphasizing “[a]ll that changed beginning in 1984” when “Congress overhauled federal sentencing procedures to make prison terms more determinate and abolish the practice of parole.”14 While parole supervision replaced
prison time, he explained, supervised release is imposed “to encourage rehabilitation after the completion” of a full prison sentence.15 This
difference “bears constitutional consequences,” because under
Apprendi v. New Jersey,16 any fact increasing a sentencing range must
be proved to a jury beyond a reasonable doubt.17 Parole revocation
complied with this rule because it “generally exposed a defendant only to the remaining prison term authorized for his crime of conviction,” but the five-year mandatory minimum violated it by “expos[ing] a
13. See FED.R.CRIM.P. 32.1(b)(2)(A) (procedure for revocation hearing before judge); see also Johnson v. United States, 529 U.S. 694, 700 (2000) (preponderance of the evidence standard of proof) (citing 18 U.S.C. § 3583(e)(3)); United States v. Hulen, 879 F.3d 1015, 1020 (9th Cir. 2018) (no right against self-incrimination); United States v. Santana, 526 F.3d 1257, 1260–62 (9th Cir. 2008) (no speedy trial); United States v. Rondeau, 430 F.3d 44, 47–48 (1st Cir. 2005) (no Confrontation Clause); United States v. Armstrong, 187 F.3d 392, 393–94 (4th Cir. 1999) (no Fourth Amendment exclusionary rule); United States v. Frazier, 26 F.3d 110, 113–14 (11th Cir. 1994) (no Federal Rules of Evidence); United States v. Allgood, 48 F. Supp. 2d 554, 559 (E.D. Va. 1999) (no effective assistance of counsel). Even the few favorable decisions for defendants on supervised release compared the system to parole. See, e.g.,United States v. Meeks, 25 F.3d 1117, 1122–23 (2d Cir. 1994) (retroactive application of mandatory-minimum revocation sentence violated Ex Post Facto Clause).
14. Haymond, 139 S. Ct. at 2382. 15. Id.
16. 530 U.S. 466 (2000).
defendant to an additional . . . prison term well beyond that authorized by the jury’s verdict.”18
Justice Breyer wrote a concurrence for himself only, agreeing that the five-year mandatory minimum was unconstitutional because it was too trial-like, but not applying Apprendi because of “the potentially
destabilizing consequences.”19 He stressed that the mandatory
minimum was an unusually punitive outlier from the rest of the supervised release system, which he said was otherwise similar to parole.20
Finally, Justice Alito wrote a very frustrated dissent calling the plurality opinion “revolutionary” and even “dangerous” for casting doubt on supervised release.21 He argued that there was no Apprendi
problem because the original jury verdict itself authorized the judge to impose the five-year mandatory minimum, and called the plurality’s distinction between parole and supervised release “purely formal” with “no constitutional consequences.”22
The majority vote in Haymond is an important reaffirmance of the right to a jury trial in an age of mass supervision. It is also the Court’s first official recognition of one significant difference between parole and supervised release: parole replaced prison time, while supervised release adds to it. Nevertheless, the opinions are limited in focus. The Justices solely considered the jury trial right, without addressing the broader due process analysis. The Justices also appeared to agree that parole was otherwise similar to supervised release, with the plurality and dissent describing them as rehabilitative and Justice Breyer stating that the role of the judge was the same in each system.23
Although Haymond represents a step forward in understanding the constitutional relationship between parole and supervised release, the Court’s analysis was incomplete. Closer inspection actually reveals three critical differences between the systems:
18. Id. at 2382.
19. Id. at 2385–86 (Breyer, J., concurring). 20. Id.
21. Id. at 2386, 2399 (Alito, J., dissenting). 22. Id. at 2388.
23. See alsoid. at 2385 (Breyer, J., concurring) (role of judge same under supervised release and parole). Compare id. at 2382 (plurality opinion) (supervised release and parole both rehabilitative), with id. at 2389 (Alito, J., dissenting) (noting that supervised release and parole were both intended to provide a period of reform so that a prisoner could return to society and lead a law-abiding life).
• Parole was a relief from punishment, while supervised release is an additional penalty.
• Parole revocation was rehabilitative, while supervised release revocation is punitive.
• Parole was run by an agency, while supervised release is controlled by courts.
Because of these differences, the Supreme Court’s parole revocation precedents should not apply to supervised release. Instead, defendants on supervised release deserve more procedural protections before their release is revoked. Treating supervised release like parole can result in significant unfair prejudice to criminal defendants, especially when they challenge delayed hearings to revoke release.
This Article proceeds in four parts. Part II recounts the history of parole and supervised release. Part III reviews the caselaw. Part IV shows how parole and supervised release differ in three significant respects and explains why those differences matter for the constitutional law of community supervision. Finally, Part V applies this analysis to the right to a timely revocation hearing, showing how applying parole precedents to supervised release unfairly denies criminal defendants the opportunity to seek concurrent sentences.
II. THE HISTORY OF PAROLE AND SUPERVISED RELEASE
The origins of mass supervision predate the modern prison itself. Beginning in the Australian penal colony in the eighteenth century, humanitarian reformers advocated rehabilitating criminal offenders by promising them early relief from punishment. This practice eventually won support in the United States, where it became known as “parole,” an essential feature of American criminal justice. In the 1960s and 1970s, however, Americans lost faith in the rehabilitative theory of punishment, leading Congress to enact the Sentencing Reform Act of 1984, which abolished parole and created supervised release. Supervised release was initially intended to be limited and rehabilitative, but a series of amendments over the next two decades transformed it into a harsher and more expansive system.
A. Origins of Early Release
The history of parole begins in 1787, with the British penal colony in Australia.24 At the time, criminal conduct was punished with fines, torture, or death, while prisons served merely to hold defendants pending trial.25 But as the crime rate rose at the end of the eighteenth century and “[w]holesale hangings” of criminal offenders grew unpopular, British courts began offering the choice of an alternative punishment—exile in a foreign colony, also known as “transportation.”26
Over the next eighty years, Britain transported over 150,000 convicts to its penal colony in Australia, where a colonial Board of Assignment “leased” them to newly arriving settlers.27 The convicts
worked without compensation, while the settlers paid the government “to cover the cost of their maintenance.”28 If a convict “behaved well”
for four, six, or eight years (depending on the length of his sentence), then he could earn a “ticket of leave” that would excuse him from further labor.29 But even those convicts who received tickets were subject to strict rules and denied basic civil rights, including the right to own property.30
Eventually, this exploitative system prompted calls for reform, planting the seeds of an idea that would one day grow into parole. In 1836, the London Society for the Improvement of Prison Discipline persuaded the British government to send a colonial official from Tasmania, Alexander Maconochie, to investigate the mistreatment of Australian convicts.31 Maconochie published a searing critique of the
24. See Helen Leland Witmer, The History, Theory and Results of Parole, 18 J.AM.INST. CRIM.L.&CRIMINOLOGY 24, 26 (1927).
25. See id. at 24–25.
26. Id. at 25; see also Edward Lindsey, Historical Sketch of the Indeterminate Sentence and Parole System, 16 J.AM.INST.CRIM.L.&CRIMINOLOGY9, 11 (1925).
27. See Witmer, supra note 24, at 25–26; Lindsey, supra note 26, at 11. Convict leasing was justified on the ground that the government had paid to transport the convicts to Australia. See Doherty, supra note 10, at 965. The practice appears to be an outgrowth of British courts paying private contractors to transport convicts to North America with “a property right in the services of the felons.” Witmer, supra note 24, at 24.
28. Doherty, supra note 10, at 965.
29. Id. (quoting William Molesworth, Sir, SELECT COMMITTEE ON TRANSPORTATION xvii (1837–38)).
30. ALEXANDER MACONOCHIE, AUSTRALIANA:THOUGHTS ON CONVICT MANAGEMENT AND OTHER SUBJECTS CONNECTED WITH THE AUSTRALIAN PENAL COLONIES 3–4 (London, John W. Parker, West Strand 1839).
colony, condemning what he saw as a “disguised system of slavery.”32
Convicts lived in the “roughest manner,” he reported, “subject to the most severe regulations” and “equally severe punishments,” including “the chain-gang or the triangle, or . . . hard labor on the roads.”33
Tickets of leave promised eventual relief, but they were difficult to earn, because “[t]he record kept of prisoners’ conduct only embraces offences,” not “good ordinary behaviour.”34 Tickets also could be
revoked for “trifling irregularities” and “on very slight occasion,” so a “very large proportion” of ticket holders were eventually forced back into labor.35
Maconochie proposed that the penal colony’s fundamental flaw was its lack of concern for the convicts’ wellbeing and development. “The essential and obvious error,” he declared, was the “total neglect of moral reasoning and influence, and [the] exclusive reliance, in every relation of life, on mere physical coercion.”36 As a result, “[t]he
prisoners are all made bad men instead of good.”37 Instead, he
suggested, penal officials should encourage their captives’ moral reform. According to him, convicts should not be sentenced to a term of years, but instead required to earn “a fixed number of marks of commendation” in order to win release.38 Convicts would be awarded
“marks” for good behavior and lose them for bad, with the rules of the colony enforced “merely by the gain, or loss, of marks.”39 By
collecting more and more marks, a convict would earn “successive degrees” of freedom, eventually leading to total release.40 Under this
system, Maconochie predicted, criminals would be motivated to better themselves: “[W]hen a man keeps the key of his own prison, he is soon persuaded to fit it to the lock.”41
32. MACONOCHIE, supra note 30, at 37. 33. Id. at 2. 34. Id. at 3. 35. Id. at 4. 36. Id. at 7–8. 37. Id. at 11. 38. Id. at 21. 39. Id. 40. Id.
41. Lindsey, supra note 26, at 23; see also MACONOCHIE, supra note 30, at 21 (“I am convinced that the Social decorums, virtues, and feelings, which would be thus early and universally elicited, would have the most powerful effect in changing the characters of many, even of the very hardened.”).
Maconochie’s proposal became known as the “mark system,”42
one principle of a broader penal reform movement that advocated for a more humane approach to criminal justice by rehabilitating offenders, rather than inflicting suffering.43 In the 1850s, Australia
won limited self-government and began refusing to accept more convicts, leading the British to turn to prisons as a primary method of punishing criminal defendants.44 At last forced to reckon with how to
administer a large and growing population of domestic prisoners, prison officials in both England and Ireland drew on Maconochie’s ideas, experimenting with “progressive stages of confinement” that rewarded good behavior by advancing inmates from solitary imprisonment, to communal labor, and finally to freedom.45
Like Maconochie’s mark system, these new programs reflected a rehabilitative mindset.46 Walter Crofton, chair of the Board of
Directors of Convict Prisons for Ireland, claimed his “system of measuring the industry and improvement of the criminal, and crediting him with an intelligible value for it” made each prisoner “the arbiter of his own fate, and . . . induced to co-operate with those placed over him in their efforts for his improvement.”47 Joshua Jebb, chair of the
English Board, described his “principle of graduation” in similar terms: “Whilst advocating a stringent and repressive system of
42. Doherty, supra note 10, at 967. Maconochie was not the only one to advocate for early release as a means of rehabilitating criminal offenders. A French reformer proposed a similar idea in 1838: “Since the principal aim of the penalty is the reform of the convict, it is desirable that any convict whose moral regeneration is sufficiently assured should be set free.”MICHEL FOUCAULT, DISCIPLINE AND PUNISH:THE BIRTH OF THE PRISON 269(Alan Sheridan trans., Vintage Books ed., 1979) (1977).
43. See Jacob Schuman, Sentencing Rules and Standards: How We Decide Criminal Punishment, 83 TENN.L.REV. 1, 8–9 n.28 (2015). The National Prison Association declared in 1870: “The treatment of criminals by society is for the protection of society. But since such treatment is directed to the criminal rather than to the crime, its great object should be his moral regeneration. Hence the supreme aim of prison discipline is the reformation of criminals, not the infliction of vindictive suffering.” Id.
44. Witmer, supra note 24, at 30–31, 34–36.
45. Doherty, supra note 10, at 970–75; Witmer, supra note 24, at 39.
46. While similar, the Irish and English mark systems differed in important respects, including that release was revocable in the Irish system, but not in the English. See Doherty, supra note 10, at 973–76; Witmer, supra note 24, at 39–40.
47. Walter Crofton, The Irish System of Prison Discipline, in TRANSACTIONS OF THE
NATIONAL CONGRESS ON PENITENTIARY AND REFORMATORY DISCIPLINE 67 (E.C. Wines ed., Albany, Weed, Parsons & Co. 1871).
discipline . . . I am no less impressed with the advantage of encouraging good conduct by the hope of reward.”48
B. Development of Parole
During the second half of the nineteenth century, the mark system won converts across the Atlantic and took root in the United States. In the 1860s, the New York Prison Association began promoting the work of Maconochie, Crofton, and Jebb, declaring that prison should serve “as an adult reformatory, where the object is to teach and train the prisoner in such a manner that, on his discharge, he may be able to resist temptation and inclined to lead an upright, worthy life.”49 Early
release for good behavior was key to achieving this goal, because it “plac[ed] the prisoner’s fate . . . in his own hands by enabling him, through industry and good conduct, to raise himself, step by step, to a position of less restraint; while idleness and bad conduct, on the other hand, keep him in a state of coercion and restraint.”50
In 1876, the New York legislature agreed to implement these ideas at a new prison in Elmira.51 At the Elmira Reformatory, prisoners
would be sentenced to a fixed term of years, but the board of managers would also have the “power to establish rules and regulations under which prisoners . . . may be allowed to go upon parole outside of the reformatory buildings and inclosure [sic].”52 Eligibility for “parole”
(derived from the French for “word of honor”53) would be based on “a
system of marks,” which would be “credited for good personal demeanor, diligence in labor and study and for results accomplished” and “charged for derelictions, negligences and offenses.”54 The board
48. Joshua Jebb,Prison Discipline,inTRANSACTIONS OF THE NATIONAL ASSOCIATION FOR THE PROMOTION OF SOCIAL SCIENCE 434(George W. Hastings ed., London, John W. Parker, Son, and Bourne, West Strand, 1863).
49. Lindsey, supra note 26, at 17 (quoting F.H. WINES, PRISON REFORM, CHARITIES
PUBLICATION COMMITTEE 26 (1910)); see also Joan Petersilia, Parole and Prisoner Reentry in the United States, 26 CRIME &JUST. 479, 488 (1999).
50. Lindsey, supra note 26, at 17 (quoting F.H. WINES, PRISON REFORM, CHARITIES
PUBLICATION COMMITTEE 26 (1910)); see also Charlton T. Lewis, The Indeterminate Sentence, 9 YALE L.J.17, 19 (1899) (“Let society hold its enemy in duress until he ceases to be its enemy. This rule protects the community and furnishes to the criminal the motive for adjusting himself to its order.”).
51. Lindsey, supra note 26, at 17, 21.
52. ANNUAL REPORT OF THE BOARD OF MANAGERS OF THE N.Y.STATE REFORMATORY AT
ELMIRA, N.Y. FOR THE YEAR ENDING SEPTEMBER 30, 188854(1889)[hereinafter ANNUAL
REPORT].
53. Doherty, supra note 10, at 981 n.139. 54. ANNUAL REPORT,supra note 52, at 55–56.
of managers would also enjoy “full power” to “retake and reimprison any convict” who violated the “rules and regulations” governing his release.55
Zebulon Brockway, superintendent of Elmira, advocated this system as a way to encourage prisoners to rehabilitate themselves:
Captivity, always irksome, is now unceasingly so because . . . the duty and responsibility of shortening it and of modifying any undesirable present condition of it devolve upon the prisoner himself . . . . Naturally, these circumstances serve to arouse and rivet the attention upon the many matters of the daily conduct which so affect the rate of progress toward the coveted release. . . . Habitual careful attention with accompanying expectancy and appropriate exertion and resultant clarified vision constitute a habitus not consistent with criminal tendencies.56
Brockway was apparently good on his word—nine out of ten inmates at Elmira earned early release from prison within their first three years.57
The experiment at Elmira quickly won converts across the country.58 Between 1875 and 1900, twenty states passed laws allowing
prisoners to earn early release for good behavior; by 1927, the number was forty-seven; and by the 1950s, every state in the nation had embraced parole.59 The federal government enacted its own Parole Act
in 1910,60 creating a separate parole board for each federal prison, later
consolidated in a single United States Parole Commission in Washington, D.C., with members appointed by the President and confirmed by the Senate.61
Under the federal parole system, sentencing worked as follows: A district judge would sentence a defendant to a fixed term of years of
55. Id. at 54–55.
56. Lindsey, supra note 26, at 27–28. 57. Doherty, supra note 10, at 982. 58. Lindsey, supra note 26, at 30–32.
59. Doherty, supra note 10, at 982–83; Petersilia, supra note 49, at 489; Lindsey, supra note 26, at 30–40.
60. Parole Act, ch. 387, § 1, 36 Stat. 819 (1910), repealedby Sentencing Reform Act of 1984, Pub. L. No. 98-473, 98 Stat. 1987 (codified as amended at 18 U.S.C. §§ 3551–3742 (2006)). Before 1910, federal prisoners received “good-time” credit for each month they obeyed prison rules, with no supervision after their release. Lindsey,supra note 26, at 56.
61. Peter B. Hoffman, History of the Federal Parole System: Part I (1910–1972),61FED. PROB. 23, 23 (1997).
imprisonment from within a range set by statute.62 After he had served
one-third of that term, the Parole Commission could grant him early release from prison if he had “substantially observed the rules of the institution” and his return to the community would neither “depreciate the seriousness of his offense or promote disrespect for the law” nor “jeopardize the public welfare.”63 Upon release, the parolee would be
subject to supervision by a parole officer, who would enforce “conditions of parole” set by the Commission.64 If the Commission
found that the parolee had violated a condition, then it could revoke his parole and send him back to prison to serve out the remainder of his original sentence.65 Representative Henry D. Clayton of Alabama,
who introduced the parole legislation in the House, declared it “in accordance with the enlightened sentiment of the day, the progressive spirit of the times, and in harmony with the philanthropy of the day and age, that would aid suffering humanity and at the same time lend a helping hand toward the reformation of convicted criminals.”66
C. Turn Against Indeterminate Sentencing
By the 1970s, parole “ha[d] become an integral part of the [country’s] penological system.”67 At the system’s height, the Parole
Commission granted early release to more than two-thirds of federal inmates,68 and parole boards across the country granted it in
approximately three-fourths of all cases.69 Parole fit into a model of
criminal punishment known as “indeterminate sentencing,” where the penalty for the crime was not fully determined in advance of its commission.70 Instead, Congress defined a statutory range for each
offense, the judge selected a sentence from within that range for each
62. 18 U.S.C. § 4205(a) (2012).
63. 18 U.S.C. §§ 4205(a) (2012), 4206(a) (2012) (repealed by Sentencing Reform Act of 1984, Pub. L. No. 98-473, 98 Stat. 1987 (codified as amended at 18 U.S.C. §§ 3551–3742 (2006)); see also Vincent, supra note 10, 187 n.1 (“Within these parameters, the United States Parole Commission selected the actual time of release by either setting a parole date or deciding that the inmate should be held until his or her mandatory release date.”).
64. 18 U.S.C. §§ 4209 (repealed 1987), 4214 (2012) (repealed by Sentencing Reform Act of 1984, Pub. L. No. 98-473, 98 Stat. 1987 (codified as amended at 18 U.S.C. §§ 3551–3742 (2006)).
65. Id.
66. Doherty, supra note 10, at 984–85.
67. Morrissey v. Brewer, 408 U.S. 471, 477 (1972).
68. Greenholtz v. Inmates of Neb. Penal & Corr. Complex, 442 U.S. 1, 30 (1979) (Marshall, J., dissenting in part).
69. Petersilia, supra note 49, at 489.
defendant, and the parole board determined when prisoners were ready to be released.71
Yet, after one-hundred years of dominance, parole started to lose support. In the 1960s and 1970s, a bipartisan consensus emerged in favor of a more determinate approach to punishment.72 Critics on the
left questioned the moral authority of parole boards to decide whether a person was ready to leave prison and criticized socio-economic disparities in who was granted parole.73 Critics on the right argued that
criminal offenders deserved to be punished for their crimes, not released early or coddled with attempts at reform.74 Widely-read
empirical studies suggested that prisons “have had no appreciable effect on recidivism,”75 leading many to doubt “that prison programs
could ‘rehabilitate individuals on a routine basis’—or that parole officers could ‘determine accurately whether or when a particular prisoner ha[d] been rehabilitated.’”76
Parole’s most influential critic was Judge Marvin Frankel of the Southern District of New York, who condemned indeterminate sentencing in his 1972 book, Criminal Sentences: Law Without Order.77 Judge Frankel described parole boards as capricious and
secretive, and questioned their “supposed expertise” in predicting when any particular inmate was ready for release.78 He argued that the
arbitrariness of the parole boards’ decisions encouraged prisoners to become cynical and manipulative: “The theory of rehabilitative benefit from the striving for parole is dissolved in an acid certainty among the supposed beneficiaries that the task is to find the muscle or the stratagems for beating a rotten system.”79
71. Seeid. at 364–65; Frank O. Bowman, III, The Quality of Mercy Must Be Restrained, and Other Lessons in Learning to Love the Federal Sentencing Guidelines, 1996 WIS.L.REV. 679, 680–84 (1996).
72. Schuman, supra note 43, at 11–12.
73. SeeMistretta, 488 U.S. at 365–66; Petersilia, supra note 49, at 492–93; see also KENNETH
C.DAVIS,DISCRETIONARY JUSTICE:APRELIMINARY INQUIRY 11–12 (1969).
74. See Doherty, supra note 10, at 993–94; see also ERNEST VAN DEN HAAG,PUNISHING
CRIMINALS:CONCERNING A VERY OLD AND PAINFUL QUESTION 182 (1975) (“It seems almost a truism that criminals should be punished so there will be less crime.”); ANDREW VON HIRSCH, DOING JUSTICE:THE CHOICE OF PUNISHMENTS 37 (Ne. Univ. Press ed., 1986) (1976).
75. Doherty, supra note 10, at 994; see also Schuman, supra note 43, at 11 (“Anecdotal and empirical evidence suggested that prisons were not reforming most offenders; meanwhile, crime rates were rising.”).
76. Tapia v. United States, 564 U.S. 319, 324–25 (2011) (citation omitted).
77. MARVIN E.FRANKEL,CRIMINAL SENTENCES:LAW WITHOUT ORDER 90 (1973). 78. Id. at 90, 109.
Judge Frankel’s opposition to parole reflected his firm rejection of the rehabilitative theory of punishment.80 Sentencing policy in the
mid-twentieth century was based on a “medical” model of imprisonment that echoed Maconochie’s call for the moral improvement of criminal offenders, viewing them as “sick” and needing “treatment” in prison.81 Parole boards were essential to this
effort because they served “to administer indeterminate sentences by determining when the ‘patient’ was cured.”82 Judge Frankel ridiculed
this idea: “We sentence many people every day who are not ‘sick’ in any identifiable respect, and are certainly not candidates for any form of therapy or ‘rehabilitation’ known thus far. . . . Instead, they have coldly and deliberately figured the odds, risked punishment for rewards large enough . . . to justify the risk, but then had the misfortune to be caught.”83 Therefore, he argued, “there should be no
occasion for an indeterminate sentence,” since all legitimate sentencing considerations were “knowable on the day of sentencing.”84 “[T]he apparatus of parole and parole-board procedures
needs drastic revision,” he declared, suggesting that all prisoners should serve “a definite sentence, known and justified on the day of sentencing.”85
D. End of Parole
What followed in the late 1970s was “a true ‘sentencing revolution’ in which the highly-discretionary indeterminate sentencing systems that had been dominant for nearly a century” were “replaced by a diverse array of sentencing structures.”86 Despite this
diversity, reformers were united in their goal of making sentences more determinate by abolishing parole and requiring defendants to serve their full prison terms.87 Legislation inspired by Judge Frankel’s
80. Id. at 90, 109.
81. See Alan M. Dershowitz, Criminal Sentencing in the United States: An Historical and Conceptual Overview, 423 ANNALS AM.ACAD.POL.&SOC.SCI.117, 128 (1976); FRANKEL, supra note 77, at 89; see also Douglas A. Berman, Conceptualizing Booker, 38 ARIZ.ST.L.J. 387, 388–89 (2006) (“The rehabilitative ideal was often conceived and discussed in medical terms . . . .”); MACONOCHIE, supra note 30, at 7–8 (discussing the need for moral reasoning and influence).
82. Michael Vitiello, Reconsidering Rehabilitation, 65 TUL.L.REV. 1011, 1016 (1991). 83. FRANKEL, supra note 77, at 90, 109.
84. Id.
85. Id. at 98, 116.
86. Berman, supra note 81, at 395. 87. See id.
proposals failed at the federal level in 1975, but inspired states to begin eliminating their parole systems one by one.88 Maine went first in
1976, followed by California and Indiana.89 By 1984, ten states had
ended parole, and by the year 2000, every state in the country had enacted determinate sentencing reforms.90
Congress abolished the federal parole system in the Sentencing Reform Act of 1984, which enacted “sweeping reforms” to the nation’s criminal justice system.91 The Act implemented Judge
Frankel’s proposals by creating a determinate sentencing system in which defendants would serve their prison terms in full, with no opportunity for parole.92 The Act also expressly rejected the
rehabilitative theory of imprisonment, instructing sentencing courts to “recogniz[e] that imprisonment is not an appropriate means of promoting correction and rehabilitation.”93 The Senate Report linked
this rejection of rehabilitation to the abolition of parole: “[A]lmost everyone involved in the criminal justice system now doubts that rehabilitation can be induced reliably in a prison setting, and it is now quite certain that no one can really detect whether or when a prisoner is rehabilitated.”94
Although the Sentencing Reform Act abolished parole, it still offered two extremely limited ways for prisoners to earn early release.95 First, every year a prisoner “displayed exemplary
compliance with institutional disciplinary regulations,” he could receive thirty-six days of “good time” credit, or approximately 10 percent off his sentence.96 Second, the Act instructed the Bureau of
Prisons, “to the extent practicable,” to allow prisoners to “spend[] a
88. Doherty, supra note 10, at 995. 89. Petersilia, supra note 49, at 494–95.
90. See Thomas B. Marvell & Carlisle E. Moody, Determinate Sentencing and Abolishing Parole: The Long-Term Impacts on Prisons and Crime, 34 CRIMINOLOGY 107, 108 (1996); Berman, supra note 81, at 394 n.41; Petersilia, supra note 49, at 495.
91. Mistretta v. United States, 488 U.S. 361, 366 (1989).
92. Kate Stith & Steve Y. Koh, The Politics of Sentencing Reform: The Legislative History of the Federal Sentencing Guidelines, 28 WAKE FOREST L.REV. 223, 228–30 (1993); Doherty, supra note 10, at 995.
93. 18 U.S.C. § 3582(a) (2012); see also Tapia v. United States, 564 U.S. 319, 324–25 (2011) (“[T]he system’s attempt to ‘achieve rehabilitation of offenders had failed.’” (quoting Mistretta, 488 U.S. at 366)); Mistretta, 488 U.S. at 366–67.
94. S.REP.NO. 98-225, at 38 (1983), as reprinted in 1984 U.S.C.C.A.N. 3182. 95. Doherty, supra note 10, at 996; Stith & Koh, supra note 92, at 226, n.10.
96. Doherty, supra note 10, at 996; Stith & Koh, supra note 92, at 226, n.10. This figure was later increased to fifty-four days. See 18 U.S.C. § 3624(b) (2012).
portion of the final months of [their] term (not to exceed 12 months), under conditions that will afford that prisoner a reasonable opportunity to adjust to and prepare for the reentry . . . into the community.”97 In
practice, this meant prisoners would spend the last few months of their sentences in a halfway house or community correctional facility, with probation officers available to “offer assistance” during this time.98
E. Creation of Supervised Release
To replace parole supervision after prison, the Sentencing Reform Act created a new kind of sentence called “supervised release.” Since the Parole Commission no longer had a role to play, the same judge who imposed the prison sentence was also assigned the power to choose a set of conditions that the defendant would have to obey for a term of years following his release.99 Supervised release would be
imposed at the sentencing hearing, at the same time as the sentence of imprisonment.
This change was intended to rationalize the imposition of post-release supervision. Under parole, the length of the supervision term depended on “the time left on the original sentence,” rather than “the needs of the defendant.”100 As a result, parole terms were often lengthy
and irrational. A well-behaved prisoner would be granted early release and then have to serve a long term of supervision in the community, while a poorly-behaved prisoner would not be granted release and so would have no supervision at all. Under supervised release, by contrast, judges would impose supervised release based on the individual facts of each case, so that “probation officers will only be supervising those releasees . . . who actually need supervision.”101 The
legislative history gives as specific examples a defendant who will serve a very long prison sentence and need transitional support to return to the community, or a defendant with a special “need[]” for “supervision and training programs after release.102
97. 18 U.S.C. § 3624(c)(1) (2012). 98. Id. § 3624(c)(3).
99. See 18 U.S.C. § 3583 (2016),invalidated by United States v. Haymond, 869 F.3d 1153 (10th Cir. 2017); U.S.SENTENCING GUIDELINES MANUAL § 7A(2)(b) (U.S.SENTENCING COMM’N
2016).
100. Biderman & Sands, supra note 10, at204.
101. S.REP.NO. 98-225, at 125 (1983), as reprinted in 1984 U.S.C.C.A.N. 3182. 102. Id. at 124.
Perhaps most significantly, the Sentencing Reform Act provided no mechanism to revoke a defendant’s supervised release.103 Neither
judges nor probation officers would have the power to send defendants back to prison for violating their conditions of release, because Congress “did not believe that a minor violation of a condition of supervised release should result in resentencing of the defendant,” and “a more serious violation [c]ould be dealt with as a new offense.”104
Only if a defendant repeatedly and flagrantly violated the conditions of his release could the government charge him with criminal contempt of court, but this would require a trial affording the defendant full constitutional protections.105 Supervised release would
“provide rehabilitative services, but not in the guise of the coerced cure.”106
Yet just two years after passing the Sentencing Reform Act, Congress enacted the first in a series of amendments that transformed supervised release into a harsher and more expansive system. The most significant change came in the 1986 Anti-Drug Abuse Act, which added a revocation mechanism empowering judges to “revoke a term of supervised release” and sentence a defendant to imprisonment if the United States Attorney’s Office proved “by a preponderance of the evidence that the defendant violated a condition of supervised release.”107 Proceedings to revoke supervised release
would be governed by the same rules as parole revocation, set forth in Federal Rule of Criminal Procedure 32.1.108
Over the next two decades, Congress voted again and again to extend the reach of the supervised release system and enhance the penalties for violations. In addition to adding a revocation mechanism, the 1986 Act imposed mandatory minimum terms of supervised release on federal defendants convicted of drug-trafficking crimes.109
In 1987, Congress voted to increase both the terms of supervised release and the prison sentences for violations.110 In 1994, Congress
103. See Biderman & Sands, supra note 10, at 204.
104. See id.; Harry B. Wooten, Violation of Supervised Release: Erosion of a Promising Congressional Idea into Troubled Policy and Practice, 6 FED.SENT’G.REP. 183, 183 (1994). 105. Doherty, supra note 10, at 999–1000.
106. Id. at 999.
107. Anti-Drug Abuse Act of 1986, Pub. L. No. 99-570, 100 Stat. 3207-7. 108. Seeid.
109. Seeid. at 3207-3–3207-5.
enacted a “mandatory revocation” provision, requiring judges to revoke release and impose a sentence of imprisonment if a defendant violated his release by possessing a controlled substance, possessing a firearm, or refusing a drug test.111 That same year, Congress also
authorized judges to impose additional terms of supervised release as punishment when defendants violated their original terms of supervised release.112 In 2002, Congress expanded mandatory
revocation by requiring judges to impose a sentence of imprisonment on defendants who failed three drug tests in a single year.113 Finally,
in 2003, Congress increased the prison sentences for multiple supervised release violations and implemented lifetime supervised release and mandatory revocation for sex offenders.114
The legislative history for these amendments is very thin,115 and
what exists does not suggest a rehabilitative mission. The revocation mechanism was the result of lobbying by probation officials who sought greater leverage to enforce conditions of supervised release against defendants.116 The House Report accompanying the 2003
amendment cited the views of “prosecutors regarding the inadequacy of the existing supervision periods for sex offenders . . . whose criminal conduct may reflect deep-seated aberrant sexual disorders that are not likely to disappear within a few years of release from prison.”117
The Sentencing Commission also played a significant role in expanding and toughening supervised release.118 As the agency
created by the Sentencing Reform Act to promulgate federal Sentencing Guidelines, the Commission’s very first edition in 1987 directed that district courts “shall” impose a term of supervised release 111. Violent Crime Control and Law Enforcement Act of 1994, Pub. L. No. 103-322, § 110505, 108 Stat. 1796, 2016–17.
112. Id. at 2017.
113. 21st Century Department of Justice Appropriations Authorization Act, Pub. L. No. 107-273, § 2103, 116 Stat. 1758, 1793 (2002).
114. Prosecutorial Remedies and Other Tools to End the Exploitation of Children Today Act of 2003, Pub. L. No. 108-21, § 101, 117 Stat. 651, 652.
115. See Doherty, supra note 10, at 1001 (“[L]ittle consideration seems to have been given to the conceptual differences between supervised release and probation,” and “[t]he adoption of the revocation mechanism did not even warrant a separate header to draw attention to the change.”).
116. Id. at 1001–02; see also Vincent, supra note 10, at 188 (adding revocation mechanism because “without a realistic threat of reincarceration, some offenders would violate the conditions of supervised release with impunity”).
117. H.R.REP.NO. 108-66, at 49–50 (2003), as reprinted in 2003 U.S.C.C.A.N. 683. 118. U.S.SENTENCING GUIDELINES MANUAL § 5D3.1(a) (U.S. Sentencing Comm’n 1987).
whenever they sentence a defendant to more than one year in prison, and “may” impose supervised release “in any other case.”119 Every
subsequent edition of the Guidelines has featured this same instruction, with the only exception being for defendants who are “deportable alien[s]” and thus “likely [to] be deported after imprisonment.”120 The Commission also adopted a highly punitive
view of revocation, instructing that courts should aim to “sanction primarily the defendant’s breach of trust, while taking into account, to a limited degree, the seriousness of the underlying violation and the criminal history of the violator.”121
The cumulative effect of these changes has made supervised release into a more expansive, more rigid, and more punitive system. District judges now impose supervised release in 99 percent of eligible cases, with the average term lasting forty-one months (not counting those sentenced to lifetime supervised release).122 In 2015, the number
of people on supervised release hit an all-time high of 115,000—five times more than were under parole.123 Revocations have also become
more common,124 and more than half of all revocations are for
non-criminal conduct.125 One-third of all defendants are eventually found
in violation of a condition of their release, with the average revocation sentence lasting eleven months.126 In 2009, over 10,000 people were
in federal prison for violating their supervised release,127 which was
between 5 and 10 percent of the total federal prison population.128
While Congress intended supervised release to reduce government
119. Id.
120. U.S.SENTENCING GUIDELINES MANUAL § 5D1.1(c) (U.S.SENTENCING COMM’N 2018). Nonetheless, over 90 percent of non-citizen defendants are still sentenced to supervised release. See U.S.SENTENCING COMM’N,FEDERAL OFFENDERS SENTENCED TO SUPERVISED RELEASE 60 (2010),
https://www.ussc.gov/sites/default/files/pdf/research-and-publications/research-publications/2010/20100722_Supervised_Release.pdf.
121. U.S.SENTENCING GUIDELINES MANUAL § 7A3(b) (U.S.SENTENCING COMM’N 2018). 122. See U.S.SENTENCING COMM’N,supra note 120, at 49–50.
123. See Schuman, supra note 6; PEWCHARITABLE TRS., supra note 5.
124. See Whiteside, supra note 10, at 211 (“Approximately one-half of the districts report that there are more revocation actions than in the past . . . .”).
125. Doherty, supra note 10, at 1016. The Sentencing Guidelines suggest a long list of conditions of release. U.S. SENTENCING GUIDELINES MANUAL § 5D1.3 (U.S. SENTENCING
COMM’N 2018). Judge Richard Posner counted ten “mandatory” conditions of release, fourteen “standard” conditions, and thirteen “special” or “additional” conditions. United States v. Thompson, 777 F.3d 368, 372–73 (7th Cir. 2015).
126. U.S.SENTENCING COMM’N, supra note 120, at 63. 127. Id. at 69.
128. Statistics,FED. BUREAU PRISONS,https://www.bop.gov/about/statistics/population_ statistics.jsp(last visited Feb. 23, 2020).
interference in the lives of former prisoners, it instead has become a system of mass supervision.
III. CASELAW ON PAROLE AND SUPERVISED RELEASE
Given the important role of supervised release in the federal criminal justice system, the constitutional law of community supervision has not received the attention it deserves. In the 1970s, the Supreme Court issued a series of three decisions defining the constitutional rights of parolees, affording them limited procedural protections before their release could be revoked.129 But after Congress abolished parole and created supervised release in 1984, the Court spent thirty years without addressing this new system. Meanwhile, the courts of appeals unanimously concluded that the two systems were not meaningfully different and therefore governed by the same minimal standard of due process. Last term in United States v. Haymond, the Supreme Court issued its first major decision on the constitutional law of supervised release, recognizing at least one important difference between the two systems, and striking down a provision of the supervised release statute as violating the Fifth and Sixth Amendment right to a jury trial.130
A. Supreme Court’s Parole Decisions
Parole has a long history in the United States, but the Supreme Court did not decide a major case on parole revocation until the 1970s, when it issued a series of three decisions defining the limited constitutional rights of parolees.131 Emphasizing the system’s administrative and rehabilitative nature, the Court held that parole revocation was governed by a minimal standard of process under the Fifth Amendment’s Due Process Clause, with no other protections under the Bill of Rights.
129. See Moody v. Daggett, 429 U.S. 78, 79 (1976); Gagnon v. Scarpelli, 411 U.S. 778, 790– 91 (1973); Morrissey v. Brewer, 408 U.S. 471, 487–89 (1972).
130. United States v. Haymond, 139 S. Ct. 2369 (2019).
131. A fourth decision, Greenholtz v. Inmates of Neb. Penal & Corr. Complex, 442 U.S. 1 (1979), held that prisoners had “no constitutional or inherent right” to be granted parole and therefore no right to due process in such decisions. Id. at 7–8. Just like the parole revocation decisions, Greenholtz emphasized the system’s rehabilitative and administrative features, which “differ[ed] from the traditional mold of judicial decisionmaking in that the choice involve[d] a synthesis of record facts and personal observation filtered through the experience of the decisionmaker and leading to a predictive judgment as to what is best both for the individual inmate and for the community.” Id. at 8.
The Supreme Court’s first and most important decision on parole revocation was Morrissey v. Brewer132 in 1972, which held that
parolees had a limited right to due process before their release could be revoked.133 Because “revocation of parole is not part of a criminal
prosecution,” the Court explained, “the full panoply of rights due a defendant in such a proceeding does not apply.”134
In excluding parole revocation from the Bill of Rights, the Court emphasized the unique “function of parole in the correctional process.”135 Parole was a grant of early release from prison “on the
condition that the prisoner abide by certain rules during the balance of the sentence,” with a goal of “help[ing] individuals reintegrate into society as constructive individuals as soon as they are able.”136 Parole
supervision was “not directly by the court but by an administrative agency.”137 These features of parole revocation differed
fundamentally from criminal prosecution, and therefore the ordinary trial rights did not apply.138
To determine the minimum procedural standards for parole revocation, the Court balanced the interests at stake.139 First, the
“liberty of the parolee, although indeterminate, includes many of the core values of unqualified liberty,” and therefore was “valuable and must be seen as within the protection of the Fourteenth Amendment,” requiring “some orderly process, however informal.”140 That liberty
interest was diminished, however, because the parolee did not enjoy “the absolute liberty to which every citizen is entitled,” but only a “conditional liberty properly dependent on observance of special parole restrictions.”141 For its part, the state had an “overwhelming
interest in being able to return the individual to imprisonment without the burden of a new adversary criminal trial,” because it had found the parolee guilty of a crime, yet agreed to release him “with the recognition that with many prisoners there is a risk that they will not
132. 408 U.S. 471 (1972). 133. Id. at 480.
134. Id. 135. Id. at 477.
136. Id. The Court also noted that parole “serves to alleviate the costs to society of keeping an individual in prison.” Id.
137. Id. at 480. 138. Id.
139. Id. at 481–84. 140. Id. at 482. 141. Id. at 480.
be able to live in society without committing additional antisocial acts.”142 Finally, “[s]ociety has a stake in whatever may be the chance
of restoring [the parolee] to normal and useful life within the law,” as well as “in treating the parolee with basic fairness: fair treatment in parole revocations will enhance the chance of rehabilitation.”143
In light of this balancing analysis, the Court concluded that parolees had the right to a revocation hearing “within a reasonable time” after being “taken into custody,” where they should have “an opportunity to be heard,” to present evidence, and to argue against revocation.144 Although the Court would not “write a code of
procedure” for these proceedings, it did set forth “the minimum requirements of due process”145 as follows:
(a) written notice of the claimed violations of parole; (b) disclosure to the parolee of evidence against him; (c) opportunity to be heard in person and to present witnesses and documentary evidence; (d) the right to confront and cross-examine adverse witnesses (unless the hearing officer specifically finds good cause for not allowing confrontation); (e) a “neutral and detached” hearing body such as a traditional parole board, members of which need not be judicial officers or lawyers; and (f) a written statement by the factfinders as to the evidence relied on and reasons for revoking parole.146
These rules were later formalized for federal parole and probation revocations in Federal Rule of Criminal Procedure 32.1.147
The Supreme Court’s second major decision on parole revocation came the next year in Gagnon v. Scarpelli,148 which held that parolees
had no absolute right to appointed counsel, but rather should be
142. Id. at 483. 143. Id. at 484. 144. Id. at 488. 145. Id. at 488–89. 146. Id.
147. FED.R.CRIM.P.32.1(advisory committee’s note to 1979 addition); see also United States v. Tham, 884 F.2d 1262, 1265 (9th Cir. 1989) (“In Gagnon v. Scarpelli, 411 U.S. 778, 782, 93 S. Ct. 1756, 1759, 36 L.Ed.2d 656 (1973), the Supreme Court held that probationers were entitled to the due process rights provided to parolees, as outlined in Morrissey v. Brewer, 408 U.S. 471, 92 S. Ct. 2593, 33 L.Ed.2d 484 (1972). These rights are codified in Rule 32.1 of the Federal Rules of Criminal Procedure.”).
assigned attorneys on a “case-by-case basis.”149 The opinion “dr[e]w
heavily on the opinion in Morrissey,”150 and indeed adopted the same
basic logic: because parole was rehabilitative and administrative, revocation was subject to a reduced standard of due process.
The Court explained that parole’s primary purpose was “to help individuals reintegrate into society as constructive individuals as soon as they are able.”151 Parole officers, animated “by and large” with
“concern for the client,” were “entrusted traditionally with broad discretion to judge the progress of rehabilitation in individual cases, and . . . armed with the power to recommend or even to declare revocation.”152 A revocation hearing was not like a “criminal trial,”
because “the State is represented, not by a prosecutor, but by a parole officer.”153 Appointing counsel to the parolee would “alter
significantly the nature of the proceeding,” since “the State in turn will normally provide its own counsel” and “lawyers, by training and disposition, are advocates and bound by professional duty to present all available evidence and arguments in support of their clients’ positions and to contest with vigor all adverse evidence and views.”154
Ultimately, “[t]he role of the hearing body itself, aptly described in
Morrissey as being ‘predictive and discretionary’” would become “more akin to that of a judge at a trial . . . less attuned to the rehabilitative needs of the individual probationer or parolee.”155
Nevertheless, the Court acknowledged that Morrissey promised limited procedural rights to parolees and that “the effectiveness of the[se] rights may in some circumstances depend on the use of skills” that “the probationer or parolee is unlikely to possess.”156 “In some
cases,” the Court noted, “the probationer[] or parolee[] . . . can fairly be represented only by a trained advocate.”157 But because “due
process is not so rigid as to require that . . . informality, flexibility, and economy must always be sacrificed,” the Court rejected “a new
149. Gagnon formally addressed probation, not parole, but the Court found no “difference relevant to the guarantee of due process between the revocation of parole and the revocation of probation.” Id. at 782, 790.
150. Id. at 783. 151. Id.
152. Id. at 784 (quoting Morrissey, 408 U.S. at 477). 153. Id. at 789.
154. Id. at 787. 155. Id. at 787–88. 156. Id. at 786–87. 157. Id. at 788.
inflexible rule with respect to the requirement of counsel,” and instead concluded “that the decision as to the need for counsel must be made on a case-by-case basis in the exercise of a sound discretion by the state authority.”158
The Supreme Court’s third and final decision on parole revocation came three years later in Moody v. Daggett,159 which
addressed the right to a timely revocation hearing.160 The petitioner
there was a federal prisoner convicted of rape on an Indian reservation and sentenced to ten years’ imprisonment, for which he served four before being released on parole.161 He then shot and killed two people
on the reservation, was convicted of homicide in federal court, and sentenced to another ten years’ imprisonment.162 Committing those
homicides also obviously violated the conditions of his parole, so the Parole Commission issued “a parole violator warrant” against him, which it lodged with prison officials as a detainer.163 The petitioner
then asked the Commission to “execute the warrant immediately so that any imprisonment imposed for violation of his earlier parole under the rape conviction could run concurrently with his . . . homicide sentences.”164 The Commission refused, saying that “it intended to
execute the warrant only upon [his] release from his second sentence.”165 In response, the petitioner filed a federal habeas corpus
action challenging the Commission’s refusal to execute the warrant. The Court affirmed the Commission’s decision, holding that a parolee was not “constitutionally entitled to a prompt parole revocation hearing when a parole violator warrant is issued and lodged with the institution of his confinement.”166 The Court acknowledged
that under Morrissey,the parolee had the right to a revocation hearing “within a reasonable time after [he] is taken into custody.”167 But
158. Id. at 788, 790. The Court added that appointed counsel should be “[p]resumptively” required when the parolee made “a timely and colorable claim” that he had not committed the alleged violation or had “substantial reasons which justified or mitigated the violation or make revocation inappropriate, and that the reasons are complex or otherwise difficult to develop or present.” Id.
159. 429 U.S. 78 (1976).
160. Id. (holding that issuance of parole violator warrant is not per se deprivation of rights). 161. Id. at 80. 162. Id. 163. Id. 164. Id. at 80–81. 165. Id. at 81. 166. Id. at 79.
because the petitioner was currently incarcerated for the homicide convictions, not the parole violation, the Court concluded that deferring the hearing did him no harm, and he had no right to object to the delay.168
The Court specifically rejected the petitioner’s argument that delaying the revocation hearing would harm him by denying him the “opportunity” to serve his sentence for the parole violation concurrently with his sentence for the homicide convictions.169 Under
the parole regulations, the Court noted, the Commission “ha[d] power to grant, retroactively, the equivalent or concurrent sentences and to provide for unconditional or conditional release upon completion of the subsequent sentence.”170 Therefore, “deferral of the revocation
decision does not deprive petitioner of any such opportunity.”171
“Finally,” the Court said, there was the “practical aspect to consider.”172 Because the petitioner had pled guilty to two homicides,
he also had obviously violated the conditions of his parole, and “the only remaining inquiry is whether continued release is justified notwithstanding the violation.”173 Since this decision was “uniquely a
‘prediction as to the ability of the individual to live in society without committing antisocial acts,’” his “institutional record” was “perhaps one of the most significant factors.”174 “Given the predictive nature of
the hearing,” the Court concluded, it made sense to delay it until the petitioner finished his current sentence, at which point that “prediction” would be “both most relevant and most accurate.”175
B. Supreme Court’s Silence on Supervised Release
In 1984, Congress passed the Sentencing Reform Act, abolishing parole and creating supervised release. Yet between 1984 and 2019, the Supreme Court said almost nothing about how this new system of post-release supervision fit into the nation’s constitutional framework. During this time, the Court issued only three minor opinions touching supervised release, all involving technical issues of statutory
168. Id. at 86. 169. Id. at 87. 170. Id. 171. Id. 172. Id. at 89. 173. Id.
174. Id. (quoting Morrissey v. Brewer, 408 U.S. 471, 480 (1972)). 175. Id.
